Com. v. Mora, J. ( 2016 )

J-S21004-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JORGE PARAMO MORA,
Appellant No. 2478 EDA 2015
Appeal from the Judgment of Sentence March 26, 2015
In the Court of Common Pleas of Chester County
Criminal Division at No(s):
CP-15-CR-0001850-2013
CP-15-CR-0003592-2013
CP-15-CR-0003856-2012
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 23, 2016
Appellant, Jorge Paramo Mora, appeals from the judgment of sentence
of an aggregate term of 8½-18 years’ incarceration, following his conviction
in three separate cases, of kidnapping, simple assault, obstruction of justice,
terroristic threats, and two counts each of unlawful restraint and witness
intimidation. After careful review, we affirm in part and reverse in part.
Briefly, Appellant’s consolidated trial concerned the following events:
[Appellant]'s convictions stem from his conduct in traveling from
his residence in Georgia to the State of Pennsylvania,
specifically, to New Garden Township, Chester County,
Pennsylvania[,] to abduct the mother of his child and her sister
on September 16, 2012. While he dropped the sister off on the
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S21004-16
side of a highway in Chester County, he kept the mother of his
child, victim Guillermina Nayeli Lopez, locked in his Escalade and
absconded with her and his minor son, whom Ms. Lopez had
brought with her to Pennsylvania, back to Georgia, where he was
promptly apprehended by authorities and charged with the
instant offenses. The Intimidation of Witnesses or Victims and
the Obstructing Administration of Law or Other Governmental
Function charges stem from his course of conduct in
subsequently sending, while incarcerated pre-trial on the
Kidnapping and related offenses discussed above, two sets of
multiple threatening letters to Ms. Lopez, alternately detailing
the revenge he planned to exact upon her for her role in his
pretrial incarceration and criminal charges and urging her in
arguably more conciliatory tones to alter her testimony in court
so as to exonerate him.
Trial Court Opinion (Denying Appellant’s Post-Sentence Motion) (hereinafter
“TCO”), 7/23/15, at 2.
At lower court docket number 3856-12, Appellant was charged with
kidnapping, 18 Pa.C.S. § 2901(a)(3); unlawful restraint, 18 Pa.C.S. §
2902(a)(1); two counts of false imprisonment, 18 Pa.C.S. § 2903; and
simple assault, 18 Pa.C.S. § 2701(a)(1). At lower court docket number
3592-13, Appellant was charged with intimidation of witnesses or victims, 18
Pa.C.S. § 4952(a)(2); and obstructing administration of law or other
governmental function (obstruction of justice), 18 Pa.C.S. § 5101. At lower
court docket number 1850-13, Appellant was charged with intimidation of
witnesses or victims, 18 Pa.C.S. § 4592(a)(3); and terroristic threats, 18
Pa.C.S. § 2706(a)(1). Appellant sought to sever these charges by docket
number in a pretrial motion filed on July 16, 2014. The trial court denied
that motion on August 5, 2014. Following a jury trial, held on November 3-
5, 2014, Appellant was convicted of the above-listed charges, while “[a]ll
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other charges” not mentioned “were either withdrawn or resulted in an
acquittal.” TCO at 2.
On March 26, 2015, the trial court sentenced Appellant to an
aggregate term of 8½-18 years' incarceration. Appellant hired new counsel
for sentencing and post-sentencing matters. A post-sentence motion was
filed on April 9, 2015, raising multiple claims of trial court error, and
asserting multiple ineffective assistance of counsel (IAC) claims. The
Commonwealth filed a motion seeking to defer litigation of Appellant's IAC
claims until collateral review. The trial court granted that motion by order
dated April 22, 2015. Although a post-sentence motion hearing was held on
May 7, 2015, neither party presented additional evidence. Appellant’s post-
sentence motions were subsequently denied in an opinion and order dated
July 23, 2015.
On August 12, 2015, Appellant filed a timely notice of appeal.
Appellant then filed an untimely, court-ordered Pa.R.A.P. 1925(b) statement
on September 11, 2015.1 On September 14, 2015, Appellant filed a nunc
pro tunc motion for an extension of time to file his Rule 1925(b) statement.
The trial court granted that motion the next day. The trial court issued its
Rule 1925(a) opinion on September 16, 2015. See Opinion Sur Rule
1925(a), 9/16/15, at 1-7. Therein, the trial court largely incorporated its
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1
Appellant’s Rule 1925(b) statement was due on Tuesday, September 8,
2015.
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July 23, 2015 opinion to address the matters raised in Appellant’s Rule
1925(b) statement. Id. at 3. However, the court’s Rule 1925(a) opinion did
address a single issue not raised in Appellant’s post-sentence motion. Id. at
3-7 (concerning Appellant’s claim that the trial court erred by not declaring a
mistrial sua sponte regarding the jury’s exposure to evidence concerning
Appellant’s pre-trial incarceration).
Appellant only presents a single question for our review, “Whether the
trial court erred in denying and dismissing Appellant’s post[-]trial motion?”
Appellant’s Brief, at 5 (unnecessary capitalization omitted). However, it is
apparent that Appellant presents eight claims, and the argument section of
his brief is subdivided to address those distinct arguments. These separate
claims are as follows:
1. The evidence was insufficient as a matter of law to establish
Appellant's guilt beyond a reasonable doubt on the
Kidnapping and Unlawful Restraint charges Counts I and IV of
Term No. 3856-12.
…
2. The evidence was insufficient as a matter of law to establish
Appellant's guilt beyond a reasonable doubt on the
Intimidation of Witnesses or Victims and Obstructing
Administration of Law or Other Governmental Function of
Term No. 3592-13.
…
3. The jury verdict was against the weight of the evidence on
the Kidnapping and Unlawful Restraint charges of Term No.
3856-12.
…
4. The jury verdict was against the weight of the evidence on
the Intimidation of Witnesses and Obstructing Administration
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of Law or Other Governmental [Function] charges of Term No.
1850-13.
…
5. The Trial Court erred in denying Appellant's Motion to sever …
Appellant's three pending criminal matters.
…
6. The Trial Court's vague instruction to the jury following Officer
Codwright's testimony regarding Appellant's pre-trial
incarceration did not purge the prejudice caused by the
unnecessary disclosure.
…
7. The Trial Court erred in permitting testimony by Ms. Lopez
about unauthenticated text messages.
…
8. The Trial Court erred in permitting the prosecutor[] to ask
leading questions to Ms. Lopez on the basis that there was a
"language barrier."
Appellant’s Brief, at 11-35.
1.
Appellant’s first two claims concern the sufficiency of the evidence
supporting his convictions for kidnapping, unlawful restraint, obstructing
justice, and intimidating witnesses. As a preliminary matter, the
Commonwealth contends that these claims have been waived because, in
Appellant’s Rule 1925(b) statement, he failed to specify which elements of
these crimes that the Commonwealth failed to prove by sufficient evidence.
Commonwealth’s Brief, at 9.
We could find Appellant’s sufficiency claims waived due to the
vagueness in his Rule 1925(b) statement. “[A] [Rule 1925(b)] [s]tatement
which is too vague to allow the court to identify the issues raised on appeal
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is the functional equivalent of no Concise Statement at all.”
Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa. Super. 2001).
“Even if the trial court correctly guesses the issues Appellant raises on
appeal and writes an opinion pursuant to that supposition, the issue is still
waived.” Commonwealth v. Heggins, 809 A.2d 908, 911 (Pa. Super.
2002).
Nevertheless, we decline to find Appellant’s sufficiency claims waived
in the narrow circumstances of this case because the nature of those issues
are clear from the record. Appellant filed comprehensive post-sentence
motions in which he specifically identified the elements which he believed
were not sufficiently proven by the Commonwealth, and the trial court
issued an opinion addressing those sufficiency claims which was directly
incorporated into the trial court’s Rule 1925(a) opinion. Appellant’s Rule
1925(b) statement, although vague as to the elements under challenge,
clearly frames the sufficiency issues as a challenge to the trial court’s
dismissal, in its post-sentence motion opinion, of specifically raised
sufficiency claims. Thus, neither the trial court’s review of Appellant’s
sufficiency claims, nor our own review of those claims, is hindered by
Appellant’s vague statement of those issues in his Rule 1925(b) statement. 2
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2
However, to the extent that Appellant’s sufficiency arguments deviate from
those presented in his post-sentence motions, we will deem such matters
waived.
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We now turn to the merits of Appellant’s sufficiency claims. Our
standard of review of such claims is well-settled:
A claim challenging the sufficiency of the evidence is a question
of law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a
reasonable doubt. Where the evidence offered to support the
verdict is in contradiction to the physical facts, in contravention
to human experience and the laws of nature, then the evidence
is insufficient as a matter of law. When reviewing a sufficiency
claim[,] the court is required to view the evidence in the light
most favorable to the verdict winner giving the prosecution the
benefit of all reasonable inferences to be drawn from the
evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal
citations omitted).
Appellant first claims that the evidence was insufficient to support his
conviction for kidnapping under 18 Pa.C.S. § 2901(a)(3).
[A] person is guilty of kidnapping if he unlawfully removes
another a substantial distance under the circumstances from the
place where he is found, or if he unlawfully confines another for
a substantial period in a place of isolation, with any of the
following intentions:
(1) To hold for ransom or reward, or as a shield or
hostage.
(2) To facilitate commission of any felony or flight
thereafter.
(3) To inflict bodily injury on or to terrorize the
victim or another.
(4) To interfere with the performance by public officials of
any governmental or political function.
18 Pa.C.S. § 2901(a) (emphasis added).
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Appellant concedes, for purposes of this appeal, that the victim, Ms.
Lopez, was unlawfully removed with the intent to inflict bodily injury. See
Appellant’s Brief, at 12-13 (“In the instant case, the Commonwealth
successfully argued that Appellant transported Ms. Lopez, from Chester
County, Pennsylvania to Georgia, intending to cause bodily injury to her.”).
However, Appellant contends that the victim was “a willing participant for
most of the trip.” Id. at 13. On this basis, Appellant argues that Ms. Lopez
was not transported “a substantial distance[,]” nor confined “for a
substantial period[,]” within the meaning of the kidnapping statute. He
argues:
The Commonwealth's evidence was top heavy on the events
from the point when she voluntarily entered Appellant's Escalade
to the point where her sister is dropped off on Route 1, which
support the element of an "unlawful detention" for that brief
period. Ms. Lopez testified that she could not open the door and
that Appellant pulled her hair when she tried to exit the car with
her sister. All those events happened shortly after the two
women entered the Escalade. The distance between the
McDonald's and the point of Route 1 where Ms. Lopez's sister
was dropped off was minimal and insufficient to be considered a
"substantial distance." The evidence showed that, beyond the
initial interaction between Appellant and Ms. Lopez, there was no
testimony that, even in Pennsylvania, and, for the majority [of]
the trip to Georgia, Ms. Lopez was held against her will. To the
contrary, Ms. Lopez testified that Appellant did not do anything
to physically stop her from exiting the car…; during the lengthy
trip, the group stopped for gas and to use the facilities; they
slept at a motel in South Carolina, and Ms. Lopez was able to
phone her Mother at least four separate times and advised her of
her whereabouts.
The Trial Court rejects Appellant's argument that Ms.
Lopez and her sister entered the car "voluntarily." [TCO, at] 42.
From her actions on September 15, 2012, the day before the
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incident, and her actions on September 16, 2012, one can only
surmise that Ms. Lopez freely elected to enter Appellant's … car
on September 16th. Ms. Lopez testified that, on September
15th, Appellant unexpectedly appeared at her home and
requested that she and their Child go to the store with him. Ms.
Lopez declined. Appellant took no action to force her into his
vehicle or harm her in any way. The very next day, Appellant
and Ms. Lopez met at a McDonald's. Once more, Appellant
requested that Ms. Lopez and their Child go shopping with him
and she agreed. There was no testimony that Appellant in any
way forced Ms. Lopez into the vehicle. Interestingly, despite Ms.
Lopez's claims that Appellant texted her in June of 2012, with
threats of violence against her and her family, and the alleged
history of abuse in their relationship, she did not call the police
on September 15th or September 16th to report Appellant's
arrival in Chester County. On September 16th Ms. Lopez and
her sister both had cellular telephones at their disposal and they
were in a public place where they could have easily alerted
others of their imminent danger. Neither did, and, instead,
elected to voluntarily enter Appellant's car.
Appellant’s Brief, at 13-14 (citations to trial transcripts omitted).
In defiance of our standard of review, Appellant relies on favorable
facts and inferences from the record, while he omits a non-trivial number of
unfavorable facts. In some instances, Appellant even asserts certain facts
which are directly contradicted by the record. Contrary to Appellant’s
summary of the evidence, the trial court found:
[Appellant] abducted Ms. Lopez by false pretenses, claiming that
he wished only to go shopping with her and their son. After she
entered the vehicle, he locked the doors, which Ms. Lopez
testified could only be opened from the outside, and drove her,
not to a shopping center, but to pick up two of his friends. Once
the friends entered the vehicle, [Appellant] jumped in the back
seat with the victim and her sister and [Appellant] began yelling
at and threatening the victim, hitting her and choking her with
his hand. She had bruising around her neck which was visible
the next day when police took photographs of her for
investigative purposes. She testified that she had trouble
breathing while he was choking her, thus meeting the
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"impairment of physical condition" element of bodily injury. He
grabbed her by the hair and pulled when she tried to leave his
vehicle when [Appellant] stopped to kick her sister out of the car
on the side of Route 1 in Chester County, Pennsylvania. She
testified it hurt when he did this. She also testified that she was
afraid for her life while she was in the car with [Appellant]. Her
testimony is sufficient to establish the elements of Kidnapping,
as it demonstrates that [Appellant] unlawfully, by deception
followed with force and threats, removed Ms. Lopez a substantial
distance under the circumstances from the place where she was
found with the intent to cause bodily injury to Ms. Lopez, as
demonstrated by her testimony that he choked her hard enough
to cause her to have trouble breathing and to leave marks on
her neck that were visible into the next day, as well as with the
intent to terrorize Ms. Lopez.
TCO, at 15-16 (citations to trial transcripts omitted).
Addressing Appellant’s specific argument, the trial court stated:
We reject [Appellant]'s theory because, whether the
evidence is viewed in the light most favorable to the
Commonwealth or not, the reasonable inference from
[Appellant]'s conduct in locking the car doors, buoying his power
against the victim by picking up friends who were willing to
employ themselves to his purposes, threatening, hitting, and
choking the victim, and pulling her hair to stop her from leaving
his vehicle, all in front of the couple's then-five (5) or six (6)
year-old son, isolating the victim from her sister, her family, her
friends, and all that was familiar to her, and transporting her to
Georgia[,] is that Ms. Lopez did not at any time consent to the
trip that [Appellant] had planned for her. It is counterintuitive to
suggest that, after being isolated from her sister, friends, family
and home, locked in the car, physically abused, choked, yelled at
and threatened, the fact that Ms. Lopez may have stopped
physically resisting at some point transitioned the trip into a
consensual joyride or "frolic and detour" for her. The following
colloquy between the prosecutor and Ms. Lopez during trial
supports this conclusion.
[BY THE PROSECUTOR:]
Q. Did the [Appellant] ever say anything to you about
what would happen if you tried not to go back to Georgia
with him?
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A. He said he was going to kill me.
Q. Let me back up a second. All the way from Pennsylvania
to Georgia, why didn't you try to do something to get
away?
A. I couldn't.
Q. Why do you say that?
A. I couldn't open the doors.
Q. Were you afraid of the [Appellant]?
A. Yes.
Q. Were you afraid of what would happen if you tried to
get away?
A. Yes.
Q. What were you afraid of?
A. That he would take the child away.
Q. Were you afraid of him doing anything to you?
A. Yes.
Q. What were you afraid of?
A. That he might kill me.
[N.T.], 11/3/14, [at] 56-58.
Furthermore, it is evident from the record that Ms. Lopez
was concerned for the safety and well-being of her son.
[Appellant] had both of them in his custody. Ms. Lopez testified
that [Appellant]'s physical possession and confinement of the
child in his Escalade prevented her from alerting others to her
predicament when the party stopped for bathroom breaks along
the way, breaks on which, we note, she was always
accompanied to, and guarded outside of, the restroom by
members of [Appellant]'s retinue. Not only was she supervised
on these breaks, preventing her from having meaningful
concourse with others who might have helped her, she was
loathe to abandon her son to the [Appellant]'s care, a not unwise
or unreasonable position given [Appellant]'s abusive and
controlling disposition that day. [Appellant] manipulated Ms.
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Lopez in every way possible to accomplish the abduction. He
terrorized her physically and psychologically, both directly upon
her person and indirectly through her fears for what might
happen to her son. It is reasonable to conclude that the terror
did not abate when they crossed the Pennsylvania border. On
these facts we reject any suggestion that Ms. Lopez'[s] failure to
leave [Appellant]'s company at any time made her presence on
the trip to Georgia consensual in any way, shape or form.
TCO, at 18-20 (some citations to the trial transcripts omitted).
We agree with the trial court. Viewed in a light most favorable to the
Commonwealth, there was ample evidence demonstrating that Ms. Lopez
was held and transported against her will, over a substantial distance, and
for a substantial period of time. Thus, Appellant’s kidnapping-related
sufficiency claim lacks merit.
Appellant also challenges the sufficiency of the evidence supporting his
conviction for unlawful restraint under 18 Pa.C.S. § 2902(a)(1). Unlawful
restraint occurs when a person “restrains another unlawfully in
circumstances exposing him [or her] to risk of serious bodily injury[.]” 18
Pa.C.S. § 2902(a)(1). For purposes of this argument, Appellant concedes
that Ms. Lopez was unlawfully restrained, but contends that the evidence did
not support a finding that she suffered, or was at risk of, serious bodily
injury. “Serious bodily injury” is defined in the Crimes Code as “[b]odily
injury which creates a substantial risk of death or which causes serious,
permanent disfigurement, or protracted loss or impairment of the function of
any bodily member or organ.” 18 Pa.C.S. § 2301.
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This claim is belied by the evidence, which demonstrated that, at one
point during the kidnapping, Appellant choked Ms. Lopez “so hard that she
had trouble breathing.” TCO, at 22 (citing N.T., 11/3/14, at 53; and N.T.,
11/5/14, at 113). Nevertheless, Appellant argues that this evidence of
choking was insufficient because “[t]he only evidence of an ‘injury’ to Ms.
Lopez was a faint red mark on her neck.” Appellant’s Brief, at 16. Appellant
understates and/or misconstrues the facts adduced at trial. The marks left
on Ms. Lopez’s neck may have been the only physical evidence of injury;
however, that evidence corroborated Ms. Lopez’s testimony that she had
been choked to the point where her breathing was impaired. Ms. Lopez’s
testimony, alone, was sufficient to establish that Appellant risked causing
serious bodily injury to her. See generally Commonwealth v. Russell,
460 A.2d 316 (Pa. Super. 1983) (indicating that choking the victim, among
other circumstances, demonstrated an attempt to inflict serious bodily
injury).3
Choking a victim to the point of impeding their respiration inherently
risks causing that person serious bodily injury, because common sense
dictates that a person who cannot breathe will die within a relatively short
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3
We are aware that there were circumstances in Russell, other than
choking, which also gave rise to the risk of serious bodily injury in that case
(specifically, the victim had been threatened with rape). However, we have
no doubt whatsoever that choking a victim, coupled with evidence that the
victim’s breathing was actually impeded, without more, constitutes a risk of
serious bodily injury.
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period of time. We reject any implicit suggestion by Appellant that his
failure to choke Ms. Lopez to the point of unconsciousness or death reflects
that there was no serious bodily injury risked by that criminal act.
Moreover, evidence that the victim lacked more serious exterior wounds is
not very probative of the risks presented by the act of choking. Accordingly,
we conclude that this claim also lacks merit.
2.
Next, Appellant contends that the evidence was insufficient to sustain
his conviction for intimidation of witnesses or victims pursuant to 18 Pa.C.S.
§ 4952(a)(2) at lower court docket number 3592-13. That provision
provides as follows:
(a) Offense defined.--A person commits an offense if, with the
intent to or with the knowledge that his conduct will obstruct,
impede, impair, prevent or interfere with the administration of
criminal justice, he intimidates or attempts to intimidate any
witness or victim to:
…
(2) Give any false or misleading information or testimony
relating to the commission of any crime to any law
enforcement officer, prosecuting official or judge.
18 Pa.C.S. § 4952(a)(2).
Appellant confines his argument to whether there was sufficient
evidence that he utilized intimidation as a tactic to convince Ms. Lopez to
give false testimony. Specifically, Appellant references two letters which he
wrote to Ms. Lopez from prison, dated September 5, 2013 and September
10, 2013, in which he attempted to induce Ms. Lopez to tell the court that he
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had not kidnapped her. See Trial Court Exhibit C-7. Appellant contends
that nothing in those letters could reasonably be interpreted as a threat.
Regarding those two letters in isolation, we agree with Appellant that these
letters cannot reasonably be interpreted as a threat or similar form of
intimidation.
However, the trial court indicates that when these letters are
considered in the context of others written by Appellant to Ms. Lopez a year
earlier, it becomes clear that Appellant’s solicitation of false testimony was
accompanied by threatening undertones. During September and October of
2012, immediately following his arrest for the kidnapping-related offenses,
Appellant wrote a series of letters to Ms. Lopez in which he repeatedly
threatened her and others close to her with violent consequences if she did
not leave her boyfriend. See Trial Exhibits C-1, C-2, C-4, and C-5.
In the first letter, Appellant threatened Ms. Lopez’s boyfriend:
Tell that damn faggot boyfriend, piece of shit that I am coming
for him. Even though I don’t know nothing about you, when I
get out I already sent something to be done to him and I will
continue with you and I know you believe me, you know what I
am capable of and if you don’t believe it, just wait so you can
see it will be the last ass kicking.
TCO, at 28 (quoting C-1, as translated from Spanish, emphasis omitted).
Then Appellant shifted his rage toward Ms. Lopez:
If you don’t return, go to hell you son of a bitch. Damn bitch in
heat, whore. Daughter of fucking 30,000 whores. I am pissed
because of you. I am here because of your damn heat. You will
see what I am capable of, I have planned it out. … You
destroyed my heart and now I’m going to ruin all your life. … If
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you knew the hatred I feel you would tremble. All of you would
tremble because I am coming back.
Id. (emphasis omitted).
In the second letter, Appellant told Ms. Lopez that he is “capable of
selling [his] soul to the devil.” TCO, at 30 (quoting C-2, as translated from
Spanish). He also threatened both Ms. Lopez and her boyfriend again:
It doesn’t matter to me if I spend years in prison. It doesn’t
matter to me if I don’t have the one I want. My fucking life
doesn’t matter to me if it was already stepped on but that dog
won’t escape me, I swear to you that he will not escape me and
you know my vows aren’t lies. … Leave that asshole, you are
mine, whether you like it or not. If you don’t return to me and
you continue seeing that god for nothing. I am thinking, I have
lots of time and hatred. I want to hear you and my son will not
be denied me, I am capable of everything for him.
Id. at 28-29 (emphasis omitted).
Exhibit C-4,4 a letter dated October 4, 2012, from Appellant to Ms.
Lopez, contains these particularly disturbing threats:
Do you think I am not angry you give your ass to that son of a
bitch? I will have him pay for it, I swear on my mother, I will
have you pay and if you don't want to answer me, go ahead and
fuck yourself. Fuck your mother for everything and I will tell
you, if I am 6 months in here something will happen. If I am in
here a year two things will happen. If I am here more than a
year three things and if you show up in court and they throw me
to Mexico without my papers, I swear on my mother that I will
come for all of you and I will take all of you. On my life I
promise you, all of you, all of you, all of you. I will take you all
the way to Mexico and there is where all of you will see, when I
will do what I'm thinking of doing. One by one or more like what
will be done to the ladies and all of you will see when they are
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4
Exhibit C-3 is a brief, apologetic letter that does not appear to contain any
threats.
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raping them in front of everyone. You show up in court and
throw dirt on me, they take my papers, mami and I am some
time in jail but they will throw me to Mexico and angry like I am,
I have people, a friend of mine in prison is getting out in a week.
He says that he has a machine that cuts up tree branches and he
says that the pieces come out really small. This isn't a threat
but if you fuck me over, I will fuck you over. Answer me, this is
the last chance. You fuck me over, I fuck you over.
Id. at 31 (quoting C-4, as translated from Spanish, emphasis omitted).
Exhibit C-5 was written on the same day as C-4, and while it does not
appear as threatening as the previous letters, it references previously made
threats while pleading with Ms. Lopez to not show up to court:
A comrade that I met here has the same problem as me and told
me that if present … yourself in court on Thursday, the judge is
going to ask you question and you will have to answer them.
but … if you don't present yourself nothing will happen, nothing
will happen to you and nothing will happen to me. He says that
everything happened with him the same as what happened
between you and me and his wife presented herself at the first
court hearing and later at the second hearing she didn't. He
says that all the bad that happened was because she showed up
at the first because everything is recorded. He says that if she
hadn't showed up, nothing would have happened. Now he will
be staying sometime in prison and after that he needs to go to
Mexico. I hope not to see you there, mami help me. Do you
want that to happen to me? I know you are upset with me but
my intent was never to do anything bad to you. You know I only
did it to see if we could have another chance. I am truly sorry,
please help me. I don't want to lose my papers and my liberty,
please help me. Do it for the boy. I love the two of you.
Please, please, I still lover … all of my family, like before. I only
get mad sometimes but you know I am not that bad. I am
sorry, forgive me. I need help. I need you not to show up at
the first court. If you don't go, police will come looking for you.
Or call you by phone and they will give you a paper for another
court or will say to you why you didn't go and you only say to
them that you don't want to press charges against me, you only
want the order for me not to go near you. You won't have any
problems, nothing will happen to you, you can go ask just to be
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sure but if you show up you will put me in jail for a good amount
of time. Is that what you want? Tell me, is that what you want?
I am just ask for your forgiveness and think about it and I will
leave you alone. Just don't leave me here. Please don't show
up. Tell Loana not to show up. Don't leave me here. I am sorry,
tell her I am sorry. I no longer want to be here help me don't
go, please.
... Just don't go, you won't have any problems, I swear. But I no
longer want to be here. Ask someone that if you don't go to the
first they will send you papers for the other one and you just
need the 2 courts to go by and after when they ask you just tell
them that you don't want to press charges that you only want
the order in place and that only leaves me in jail for a month or
two and then later they will let me out. I promise on my knees, I
beg your forgiveness on my knees but don't go to court. Just
ask, nothing will happen to you. Think about it.
Id. at 32-33 (quoting C-5, as translated from Spanish, emphasis omitted).
We agree with the trial court that, when considered in the context of
the letters Appellant wrote to Ms. Lopez in the fall of 2012, his 2013 letters
provide the jury with a sufficient basis to conclude that Appellant sought to
intimidate Ms. Lopez into giving false testimony. In response to the trial
court’s conclusion, Appellant baldly asserts that the jury “was unable to
separate the harsh and inflammatory content of the 2012 letters….”
Appellant’s Brief, at 20. However, Appellant cites no legal authority which
suggests that it was improper for the jury to consider the 2012 letters in
conjunction with the witness intimidation offense. The 2012 letters
demonstrate that the 2013 letters were written during a time when Ms.
Lopez was already under threat from Appellant, and Appellant cites no
authority that suggests that there must be an immediate temporal
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relationship between the intimidation element of Section 4952 and the
solicitation to give false or misleading testimony.
Indeed, even if the 2012 letters were not admissible for purposes of
considering whether the 2013 letters constituted a Section 4952 violation,
“[t]he question of sufficiency is not assessed upon a diminished record.”
Commonwealth v. Smith, 568 A.2d 600, 603 (Pa. 1989). The
admissibility of the 2012 letters is a separate legal issue from Appellant’s
instant sufficiency claim, and Appellant’s attempt to narrowly define the
scope of the applicable record by considering the 2013 letters in isolation
has no foundation in law. On sufficiency review, the Commonwealth is
afforded all reasonable inferences from the evidence of record as it exists,
and the record in this case includes the 2012 letters. Accordingly, we
conclude that this sufficiency claim lacks merit.
Appellant also challenges whether this same evidence was sufficient to
support his conviction for obstruction of justice at lower court docket number
3592-13. As set forth in his post-sentence motion, Appellant claims that
“the intended recipient of the letters written by [Appellant] was Ms. Lopez,
not a government official. Section 5101[] does not attack criminal liability
for ‘breach of official duty,’ to individuals who are not government officials.”
Post-Sentence Motion, 4/6/15, at 2 (unnumbered pages). As with his
previous claims, Appellant’s Rule 1925(b) statement was boilerplate. In his
brief, however, Appellant adds another argument: that there was insufficient
evidence that he intended to obstruct justice because “the tone and content
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of the letters were designed to communicate to Ms. Lopez his loving feelings
for her and their son and to ask Ms. Lopez to consider resuming their
relationship, not to prevent the administration of law.” Appellant’s Brief, at
21. This aspect of Appellant’s instant sufficiency claim has been waived,
because it was not raised as such in his post-sentence motion, and because
the elements of Section 5101 under a sufficiency challenge were not
addressed in his Rule 1925(b) statement. Dowling, supra. In any event,
were we to reach this claim, we would find it meritless, as Appellant again
mischaracterizes the evidence or, at least, he misconstrues the scope of the
evidence of record pertaining to this offense. The record does not support
Appellant’s conclusion that the letters in question merely expressed affection
for Ms. Lopez and their mutual son. The 2012 and 2013 letters show that
Appellant solicited Ms. Lopez to provide false testimony, and that he did so
by intimidation.
Appellant did preserve, however, the second aspect of his sufficiency
claim with respect to Section 5101: whether he can be convicted of that
offense when he ostensibly did not seek to directly influence a government
official. Appellant argues that “there was no testimony that Appellant
obstructed by an unlawful act or physical interference any law enforcement
[official] from carrying [out] their official duties by writing loving letters to
his former partner.” Appellant’s Brief, at 21. Section 5101 provides as
follows:
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A person commits a misdemeanor of the second degree if he
intentionally obstructs, impairs or perverts the administration of
law or other governmental function by force, violence, physical
interference or obstacle, breach of official duty, or any other
unlawful act, except that this section does not apply to flight by
a person charged with crime, refusal to submit to arrest, failure
to perform a legal duty other than an official duty, or any other
means of avoiding compliance with law without affirmative
interference with governmental functions.
18 Pa.C.S. § 5101.
Appellant construes the language of this statute as requiring
demonstration of the involvement of some government official. The trial
court rejected this argument, suggesting that Appellant’s letters constituted
an “unlawful act” or “physical interference” that “obstruct[ed], impair[ed], or
pervert[ed] the administration of law” in a general sense. 18 Pa.C.S. §
5101; TCO, at 38. The court stated that Appellant was not charged, and the
jury was not instructed, under the “breach of official duty” element of the
statute, but instead under the “any other unlawful act” element, thus
dispensing with any requirement that a government official was directly
influenced. TCO, at 39.
We agree with Appellant. Neither the trial court nor the
Commonwealth cite to any case law sustaining, or even discussing, a
conviction under Section 5101 with facts remotely analogous to the instant
case. Our own research failed to identify a single published case upholding a
conviction under Section 5101 where the alleged
interference/obstruction/perversion of justice did not directly involve a
government official, with one possible exception, discussed below. Here, we
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have written communications from one private individual to another. And,
whereas we agree that Appellant’s letters constituted an attempt to
intimidate a witness, addressed previously, and that such behavior
constitutes an ‘obstruction of justice’ in the colloquial sense, it is not conduct
specifically prohibited by Pennsylvania’s obstruction of justice statute.
Where reviewing a claim that raises an issue of statutory construction, our
standard of review is plenary, and is governed by the following precepts:
Our task is guided by the sound and settled principles set forth
in the Statutory Construction Act, including the primary maxim
that the object of statutory construction is to ascertain and
effectuate legislative intent. 1 Pa.C.S. § 1921(a). In pursuing
that end, we are mindful that “[w]hen the words of a statute are
clear and free from all ambiguity, the letter of it is not to be
disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. §
1921(b). Indeed, “[a]s a general rule, the best indication of
legislative intent is the plain language of a statute.” In reading
the plain language, “[w]ords and phrases shall be construed
according to rules of grammar and according to their common
and approved usage,” while any words or phrases that have
acquired a “peculiar and appropriate meaning” must be
construed according to that meaning. 1 Pa.C.S. [§] 1903(a).
However, when interpreting non-explicit statutory text,
legislative intent may be gleaned from a variety of factors,
including, inter alia: the occasion and necessity for the statute;
the mischief to be remedied; the object to be attained; the
consequences of a particular interpretation; and the
contemporaneous legislative history. 1 Pa.C.S. § 1921(c).
Moreover, while statutes generally should be construed liberally,
penal statutes are always to be construed strictly, 1 Pa.C.S. §
1928(b)(1), and any ambiguity in a penal statute should be
interpreted in favor of the defendant.
Notwithstanding the primacy of the plain meaning doctrine as
best representative of legislative intent, the rules of construction
offer several important qualifying precepts. For instance, the
Statutory Construction Act also states that, in ascertaining
legislative intent, courts may apply, inter alia, the following
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presumptions: that the legislature does not intend a result that
is absurd, impossible of execution, or unreasonable; and that the
legislature intends the entire statute to be effective and certain.
1 Pa.C.S. § 1922(1),(2). Most importantly, the General
Assembly has made clear that the rules of construction are not
to be applied where they would result in a construction
inconsistent with the manifest intent of the General Assembly. 1
Pa.C.S. § 1901.
Commonwealth v. Shiffler, 879 A.2d 185, 189–190 (Pa. 2005) (citations
omitted).
Here, the elements of Section 5101 can be broken down as follows: a
violation occurs when a person (1) intentionally (2) obstructs, impairs or
perverts (3) the administration of law or other governmental function (4) by
force, violence, physical interference or obstacle, breach of official duty, or
any other unlawful act (5) subject to specific exceptions and (6) a general
exception for any other means of avoiding compliance with law without
affirmative interference with governmental functions. 18 Pa.C.S. § 5101.
Here, we need not concern ourselves with elements (1), (2), (4) and
(5), given our prior conclusions. Appellant’s letter writing was facially
intentional; it was an attempt to obstruct Ms. Lopez’s testimony; the conduct
constituted at least one unlawful act of intimidating a witness; and the
specific exceptions do not apply to the facts of this case. Thus, the question
before us is whether Ms. Lopez’s testimony constituted “the administration
of law or other government function,” or, alternatively, whether Appellant’s
conduct was a “means of avoiding compliance with law without affirmative
interference with government functions.” Id. In either case, the critical
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inquiry is whether Ms. Lopez’s testimony is a “government function” within
the meaning of the statute.5 We conclude that it is not.
The Crimes Code does not define the term “government function.”
However, a common sense definition is that a ‘government function’ is some
lawful act or process carried out by an organ of the state. This is quite
similar to the definition provided by Black’s Law Dictionary, wherein
“government function” is defined as: “A government agency’s conduct that is
expressly or impliedly mandated or authorized by constitution, statute, or
other law and that is carried out for the benefit of the general public.”
Black’s Law Dictionary, 812 (10th ed. 2014).
Ms. Lopez’s testimony does not constitute a “government function”
within the unambiguous, plain meaning of that term. 18 Pa.C.S. § 5101.
Certainly, the testimony of a witness assists the state in its performance of
government functions, chief among them being the prosecution of criminal
conduct. However, Appellant did not write letters threatening or otherwise
impeding the actions of the prosecutor in this case, and Ms. Lopez did not
transform into an organ of the state through her participation in a criminal
trial. For the same reasons, Appellant’s conduct in this case also falls within
____________________________________________
5
Given the construction, “the administration of law or other government
function[,]” it is clear that “the administration of law” is but one of many
possible government functions covered by the statute, not a separate
concept in its own right. 18 Pa.C.S. § 5101 (emphasis added).
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the general exception, as it did not constitute “affirmative interference with
governmental functions.” 18 Pa.C.S. § 5101.
Moreover, Appellant’s acts fit squarely within the conduct prohibited by
the witness intimidation statute, 18 Pa.C.S. § 4952. Thus, alternatively,
even if we were to find that the language of this statute was ambiguous as
to whether “government function” included a victim’s/witness’ testimony, we
would still have no reason to believe that the legislature intended both
statutes to cover Appellant’s illegal acts. Section 5101 is remarkably broad
in scope, but not so broad as to cover conduct not directly affecting or
involving an organ of the state.
The instant case is distinguishable from the case relied on by the trial
court, Commonwealth v. Snyder, 60 A.3d 165 (Pa. Super. 2013). In
Snyder, the defendant, a security guard at a housing complex, was present
at a meeting where the police discussed obtaining warrants to search an
apartment in that complex as part of a homicide investigation. A few days
later, the defendant was discharged after he had a disagreement with his
supervisors. The evening following his discharge, the defendant told
residents of the housing complex of the impending search, including the
resident in the apartment he knew would be specifically targeted by the
search, Mr. Henderson. The defendant was charged and convicted under
Section 5101.
Under a sufficiency challenge, this Court affirmed the defendant’s
conviction for obstructing justice because he “physically interfered” with the
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police search: “Viewing all the evidence admitted at trial in the light most
favorable to the verdict winner, the jury could have reasonably concluded
that [the defendant]'s actions in travelling to Mr. Henderson's apartment,
knocking on the door, and informing him about the search warrants,
constituted ‘physical’ interference with the administration of law.”
Commonwealth v. Snyder, 60 A.3d 165, 178 (Pa. Super. 2013).
The thwarted search involved in Snyder was clearly a government
function, conducted by government agents. Moreover, the defendant in
Snyder was not just any ordinary citizen: he was a private security guard
with privileged access to a pending criminal investigation. The specific
circumstances of that case are not, therefore, analogous to the instant case.
Here, Appellant had no unique ability to thwart an imminent government
function. Appellant attempted to dissuade a private citizen from testifying,
he did not attempt to thwart the patently governmental function of a
government agent conducting a lawful search. And, whereas Appellant’s
“physical” action was letter writing, the defendant in Snyder physically
appeared at the site of the impending search to warn the target of that
search. For these reasons, Snyder is not controlling and limited to the
specific facts of that case.
Consequently, for the aforementioned reasons, we find that there was
insufficient evidence to convict Appellant of obstruction of justice at lower
court docket number 3592-13. Accordingly, we hereby reverse Appellant’s
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conviction for that offense. Nevertheless, because the trial court did not
impose a sentence for that offense, re-sentencing is not required.
3.
Next, Appellant claims the trial court abused its discretion when it
found meritless his weight of the evidence claims challenging his convictions
for kidnapping and unlawful restraint at lower court docket number 3856-12.
We apply the following standard of review to a claim that a verdict is against
the weight of the evidence:
An appellate court's standard of review when presented with a
weight of the evidence claim is distinct from the standard of
review applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence.
Because the trial judge has had the opportunity to hear
and see the evidence presented, an appellate court will
give the gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial court's
determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting
or denying a new trial is the lower court's conviction that
the verdict was or was not against the weight of the
evidence and that a new trial should be granted in the
interest of justice.
This does not mean that the exercise of discretion by the trial
court in granting or denying a motion for a new trial based on a
challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court's discretion, we have
explained:
The term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion
within the framework of the law, and is not exercised for
the purpose of giving effect to the will of the judge.
Discretion must be exercised on the foundation of reason,
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as opposed to prejudice, personal motivations, caprice or
arbitrary actions. Discretion is abused where the course
pursued represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or where
the law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or ill-will.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations
omitted).
Appellant makes virtually the same arguments with regard to his
weight claim(s) as with regard to his sufficiency claims addressing these
same offenses. Generally, he argues that the testimonial evidence
supporting his conviction(s) was inconsistent. However, Appellant at best
demands that this Court view the evidence in a light most favorable to him,
which does not at all reflect our standard of review of weight-of-the-
evidence claims. Inconsistencies in trial testimony are normal in criminal
trials, and there is no reason to believe that the jury was unaware of the
inconsistencies that did exist. Often, however, Appellant’s representations
of the trial testimony are fundamentally disingenuous.
The trial court thoroughly dismantles Appellant’s weight-of-the-
evidence claim regarding these two offenses, point-by-point, see TCO, 40-
57, and we ascertain no abuse of discretion in its dismissal of these claims.6
____________________________________________
6
In summary, the trial court concluded:
That the testimonies of these witnesses differed in certain,
largely immaterial, respects does not necessitate the award of a
new trial. It is to be expected. Further, discrepancies between
witnesses' testimonies are a matter exclusively within the
province of the jury, who are free to accept or reject all, part, or
(Footnote Continued Next Page)
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Thus, we rely on the court’s analysis in concluding that Appellant’s weight-
of-the-evidence claims are meritless.
4.
Next, Appellant asserts that the verdict was against the weight of the
evidence with respect to his conviction for witness intimidation and
obstruction of justice at lower court docket number 3592-13. As to
obstruction of justice, we have already determined that the evidence was
insufficient to support Appellant’s conviction for that offense. As such, this
aspect of Appellant’s weight claim is rendered moot.
As to his conviction for witness intimidation, Appellant reiterates his
claim that the September 5th and 10th, 2013 letters he wrote to Ms. Lopez
“lacked any threats compelling Ms. Lopez to change her conduct or to refrain
from participating in the criminal proceedings against Appellant.” Appellant’s
Brief, at 25. As noted previously, Appellant’s theory disregards the threats
contained in several previous letters that preceded his requests that Ms.
Lopez present false testimony. Thus, this weight claim, a regurgitation of
Appellant’s sufficiency claim regarding the same offense as dismissed above,
_______________________
(Footnote Continued)
none of the evidence presented, to resolve. We have
demonstrated herein how these discrepancies can all reasonably
be resolved in a manner consistent with the overwhelming
weight of the evidence, including the compelling demonstrative
evidence, supporting [Appellant]'s guilt for the crimes charged.
TCO, at 56-57.
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suffers the same fundamental flaw in that it fails to take the full record
supporting the charge into account, i.e., the 2012 letters. For this reason,
and for the reasons set forth in trial court’s opinion, see TCO, at 62-64,
Appellant’s weight-of-the-evidence claim is meritless, and we ascertain no
abuse of discretion by the trial court in its dismissal of that claim.
5.
Next, Appellant contends that the trial court erred when it denied his
motion to sever. Appellant’s three cases represent three separately timed,
but ostensibly related, groups of offenses. First, Appellant was charged for
the kidnapping-related offenses at lower court docket number 3856-12.
Second, Appellant was charged with witness intimidation and terroristic
threats at lower court docket number 1850-13 for the first set of letters he
sent to Ms. Lopez soon after his arrest for kidnapping in 2012. Finally, at
docket number 3592-13, Appellant was charged with witness intimidation
and obstruction of law for the two letters he sent to Ms. Lopez in September
of 2013.
A motion for severance is addressed to the sound discretion of
the trial court, and ... its decision will not be disturbed absent a
manifest abuse of discretion. The critical consideration is
whether the appellant was prejudiced by the trial court's decision
not to sever. The appellant bears the burden of establishing
such prejudice.
Commonwealth v. Dozzo, 991 A.2d 898, 901 (Pa. Super. 2010).
Two rules of criminal procedure govern severance. Pa.R.Crim.P. 582
provides:
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(A) Standards
(1) Offenses charged in separate indictments or informations
may be tried together if:
(a) the evidence of each of the offenses would be
admissible in a separate trial for the other and is capable
of separation by the jury so that there is no danger of
confusion; or
(b) the offenses charged are based on the same act or
transaction.
Pa.R.Crim.P. 582(A). Relatedly, Pa.R.Crim.P. 583 provides: “The court may
order separate trials of offenses or defendants, or provide other appropriate
relief, if it appears that any party may be prejudiced by offenses or
defendants being tried together.”
Appellant argues that he was prejudiced by the trial court’s refusal to
sever his cases. Confusingly, he states: “While it is possible that a jury
could have effectively separated the elements of the individual events, it
appeared that they did not.” Appellant’s Brief, at 27 (emphasis added).
Appellant focuses his attention on the two sets of letters as the primary
source of potential jury confusion. He then essentially contradicts his first
statement by stating, “the fact that the string of letters was presented to the
jury in a single joint trial, could only serve to further confuse the jury. In
denying Appellant’s motion to sever, the [t]rial [c]ourt disregarded that a
year had elapsed between the first and second set of letters and that the
content of each group varied considerably. Certainly, Appellant’s frame of
mind was significantly different after he had a year to reflect on the events
of 2012.” Id. at 28 (emphasis added).
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Appellant has failed to demonstrate that the trial court abused its
discretion. First, there is a clear, logical connection between these three
cases, and the majority of evidence pertaining to each case was admissible
in the others. Notably, each case involved the same victim, Ms. Lopez, and
each offense flowed from the previous one. In the kidnapping case, the
letters pertaining to the other two cases would have been admissible to
demonstrate, at a minimum, Appellant’s motive for committing the
kidnapping and his consciousness of guilt. See Commonwealth v. Lark,
543 A.2d 491 (Pa. 1988) (holding evidence of threats made to witnesses
after the first offense was committed was admissible to establish motive,
intent, and consciousness of guilt for that offense). Furthermore, evidence
of the kidnapping was admissible in each of the other cases because that
was the offense regarding which Appellant sought to intimidate a witness.
See Commonwealth v. Young, 468 A.2d 1127, 1128 (Pa. Super. 1983)
(holding evidence of a prior shooting was properly admitted as materially
relevant to the charge of witness intimidation).
Appellant argues that the details of the kidnapping were not necessary
to establish the charges in the other two cases, but this is clearly not
entirely true. The details of the kidnapping offense were relevant to show,
inter alia, that Appellant was attempting to get Ms. Lopez to lie or otherwise
mislead the court about that kidnapping offense in the subsequent letters.
These three cases formed a single narrative, beginning with the
kidnapping, and continuing through Appellant’s multiple attempts to
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threaten and manipulate the testimony of the primary victim in a series of
letters over the year following that offense. While there is inevitably some
risk of confusion in joining criminal cases that involve events separated by
time, Appellant has failed to demonstrate that he was unduly prejudiced by
that potential, and the trial court mitigated that risk by issuing the following
jury instruction:
You should consider the cases as a separate individual case and
the evidence and the law I give to you as it relates to each case
just as you would if each case alone had been tried before you.
Once again, you're trying three separate cases at one time. And
for this reason, we'll have to pay especially close attention to the
evidence to be able to properly segment it. You can consider
with respect to each offense the evidence presented in support
of the other offense for the limited purpose of establishing the
defendant's identity and/or intent in determining whether the
defendant committed each separate and distinct offense. You
must not regard this evidence as showing the defendant is a
person of bad character, therefore, has criminal tendencies from
which you might be inclined to infer guilt.
If you find the defendant to be guilty of committing any of the
crimes charged, it must be because the Commonwealth has
demonstrated by the evidence by proof beyond a reasonable
doubt that the defendant committed each and every element of
the crimes charged and not because you believe he is a bad
person or has committed other offenses.
TCO, at 73 (quoting N.T., 11/6/14, at 299-300).
Appellant does not claim that he objected to this instruction, and
“[t]he presumption in our law is that the jury has followed instructions.”
Commonwealth v. Baker, 614 A.2d 663, 672 (Pa. 1992). Accordingly, for
aforementioned reasons, we conclude that the trial court did not abuse its
discretion when it denied Appellant’s motion to sever.
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6.
Next, Appellant contends that the trial court’s instructions to the jury,
issued after Officer Codwright’s testimony revealing Appellant’s pre-trial
incarceration during testimony discussing Appellant’s letters to Ms. Lopez,
did not adequately offset the prejudice caused by that remark. However,
Appellant concedes that trial counsel “permitted the disclosure of Appellant’s
incarceration as part of his overall trial strategy.” Appellant’s Brief, at 31
n.1. Appellant then states that, “in light of the [t]rial [c]ourt’s decision to
handle ineffectiveness claims separately, Appellant will raise its effect at a
later point.” Id. Accordingly, we decline to address this claim until
collateral review. In any event, it is apparent from the record (and
Appellant’s concessions) that this claim has been waived because there was
no objection to the complained-of testimony. Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time
on appeal.”).
7.
Appellant also claims that the trial court erred when it permitted Ms.
Lopez to testify about unauthenticated text messages ostensibly sent to her
from Appellant’s phone. Appellant complains that authentication was
required to demonstrate that Appellant, rather than someone else, sent the
messages. Appellant also contends that admission was improper because
the text messages in question were not provided to the defense in discovery.
The Commonwealth contends the messages were properly authenticated by
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Ms. Lopez and, alternatively, that the admission of this testimony was
harmless error. We agree that any error in regard to the admission of this
evidence was harmless.
“The harmless error doctrine, as adopted in Pennsylvania,
reflects the reality that the accused is entitled to a fair trial, not
a perfect trial.” Commonwealth v. Drummond, 775 A.2d 849,
853 (Pa. Super. 2001), appeal denied, 567 Pa. 756, 790 A.2d
1013 (2001). Harmless error exists if (1) the error did not
prejudice the defendant or the prejudice was de minimus; (2)
the erroneously admitted evidence was merely cumulative of
other untainted, substantially similar, and properly admitted
evidence; or (3) the properly admitted and uncontradicted
evidence admitted at trial was so overwhelming and the
prejudicial effect of the error was so insignificant by comparison
that the error could not have contributed to the verdict.
Commonwealth v. Simmons, 541 Pa. 211, 662 A.2d 621
(1995). Thus, an error at trial, which viewed by itself is not
minimal, may nonetheless be harmless, if it is merely cumulative
of untainted and properly admitted evidence. Commonwealth
v. Story, 476 Pa. 391, 411, 383 A.2d 155, 165 (1978) (setting
standards for harmless error analysis). “In applying the
harmless error analysis in a particular case, it is imperative that
the burden of establishing that the error was harmless beyond a
reasonable doubt rests upon the Commonwealth.” Drummond,
supra at 853 (quoting Commonwealth v. Rasheed, 536 Pa.
567, 570–71, 640 A.2d 896, 898 (1994)).
Commonwealth v. Dent, 837 A.2d 571, 582 n.2 (Pa. Super. 2003).
The ostensibly prejudicial nature of these messages was two-fold: a
question exists whether the messages were actually sent by Appellant, and
the messages conveyed specific threats to Ms. Lopez which were not subject
to a criminal charge in these cases. Regarding the first aspect of Appellant’s
claim of prejudice, not only did Ms. Lopez testify that the messages were
received from Appellant’s phone number, she also reported the messages to
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Corporal Call of the New Garden Township Police Department. Corporal Call
testified that he called that same number and Appellant answered (although
Corporal Call mistakenly believed that Ms. Lopez had received the threat by
phone call, a mistake explained at trial as a result of language barrier issues
caused by Ms. Lopez’s sister’s attempts to translate for her). TCO, at 88.
Thus, even if improperly authenticated at trial, the risk that the messages
were issued from a source other than Appellant’s phone is minimal.
Appellant also complains that it is possible that someone else used his phone
to communicate the threating text messages; however, there was no
reasonable way to disprove that possibility, even had the text messages
been properly authenticated. Thus, in this regard, Appellant suffered no
more prejudice as a result of any error than had the error not occurred.
As to the prejudicial nature of the threat itself, we conclude that any
such prejudice was de minimis in comparison to the graphic and specific
threats issued by Appellant in the first series of letters he sent to Ms. Lopez.
While Ms. Lopez did state that Appellant’s text messages threatened to beat
her up and/or have someone rape her, her testimony regarding the threat(s)
conveyed was limited to a few lines in a transcript that otherwise spanned
350 pages and three days of trial, and no transcript of that text message
was available for the jury to review. Moreover, the prejudicial nature of the
text message threat was slight in comparison to the threats issued by
Appellant in his letters, which, among other things, had threatened to have
Ms. Lopez thrown into a wood chipper. We conclude, therefore, that even if
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improperly admitted, this evidence did not affect the fairness of Appellant’s
trial, and that the Commonwealth has proven beyond a reasonable doubt
that Ms. Lopez’s testimony regarding the messages was harmless error.
8.
Finally, Appellant argues that the trial court erred in permitting the
prosecutor to ask Ms. Lopez leading questions due to a ‘language barrier.’
We disagree.
“The law in this area is clear. The allowance of leading questions lies
within the discretion of the trial court and a court's tolerance or intolerance
of leading questions will not be reversed absent an abuse of discretion.”
Katz v. St. Mary Hosp., 816 A.2d 1125, 1128 (Pa. Super. 2003). “A
leading question suggests or provides the answer desired by putting words
in the witness's mouth.” Commonwealth v. Stultz, 114 A.3d 865, 882
(Pa. Super. 2015).
The objection referred to by Appellant in his brief concerned the
question, “Do you recall any threats directed towards your mother and your
sister?” N.T., 11/3/14, at 37. As noted by the trial court in its opinion, this
question did “not suggest a desired answer, it merely orient[ed] the witness
towards the context of the subject matter under inquiry.” TCO, at 115. We
agree. Although this question could be construed as requesting a yes-or-no
answer, neither an affirmative nor a negative answer was suggested or
prompted by the question itself. The form of the question was proper.
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The trial court did state, in direct response to Appellant’s leading
question objection, that “even if it is a bit leading, due to the language
barrier, I’m going to allow it.” N.T., 11/3/14, at 37-38. However,
regardless of the court’s initial reasoning for permitting the form of the
question, the question at issue was not, in fact, leading. Therefore, we
ascertain no abuse of discretion in the trial court’s overruling Appellant’s
objection.
In conclusion, we reverse Appellant’s conviction for obstructing justice
at lower court docket number 3592-13, but affirm his judgment of sentence
in all other respects.
Judgement of sentence affirmed in part, reversed in part.
Jurisdiction relinquished.
Judge Lazarus joins this memorandum.
PJE Stevens concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2016
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